Cass Sunstein Discusses the Decision to End the Florida Recount.

DATE December 13, 2000 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Professor Cass Sunstein discusses yesterday's ruling by
the US Supreme Court in regards to the presidential vote recount
in Florida
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

We've invited two legal experts to discuss the Supreme Court's decision
ending
the Florida recount. A little later, we'll hear from Jeffrey Toobin. He's
writing a book on the election aftermath. First, we'll hear from
constitutional scholar Cass Sunstein. He's a law professor at the
University
of Chicago, and the author of more than 10 books.

The Supreme Court ruled 7-to-2 that the varying standards that were being
applied in the Florida recount violated the equal protection and due process
provisions of the Constitution, but two of the dissenting justices thought
that this problem could be overcome. A total of four justices were willing
to
let the count continue, but five justices said that would be
unconstitutional
because it would violate yesterday's deadline for states to appoint
electors.
This morning, I asked Cass Sunstein what precedent he thinks this decision
sets.

Professor CASS SUNSTEIN (University of Chicago): The big precedent, as this
decision suggests, that every recount now--and possibly every state
election--is subject to equal protection scrutiny to make sure that
everyone's
being treated the same. So it puts into the federal constitutional domain a
lot of issues that had been thought to be just issues of state law.

GROSS: And now--OK. So it says that all aspects of voting--is that what
you're saying--have to be subject to the equal protection clause?

Prof. SUNSTEIN: Yes. Everyone had agreed with that. But what hadn't been
thought before was that the fact that in a recount or in a vote, some people
use some machines, other people use other machines, some people's dimples
are
counted, some people's aren't. Everyone thought that was an issue of state
law, not really a federal constitutional issue. This creates a completely
new
constitutional avenue for attacking elections.

GROSS: How might that play out in the future? What might that mean?

Prof. SUNSTEIN: Well, it's clear the majority was alert to that, and tried
to limit the principle by saying, `All we mean is that when there's a
recount
proceeding overseen by one state judge'--in a case like that, the majority
said, the equal protection clause comes into play. And that was a clear
attempt to narrow the decision and to suggest that it's not going to apply
in
many other contexts. But it's not easy to explain why this is a one-way
ticket because in many cases some voters are just treated differently than
others in the ballot box and afterwards once recounts are administered.

GROSS: Well, you know, even within just the state of Florida, there are
several different types of voting systems used, you know, optical ballots,
the
punch ballots. And then throughout the country, there's a lot of variety in
what different voting systems are used. So would that be subject now to the
equal protection clause? Is the Supreme Court basically saying we have to
have one system for everybody on national elections?

Prof. SUNSTEIN: These are terrific questions. Justice Ginsburg, evidently
alarmed with the majority's creating this new doctrine of equality in
voting,
raised those questions and said, `You can't possibly mean it.' The court's
most sincere response, I think, is `We mean it, but we mean it only in a
case
in which there's a recount in which one state court judge is presiding.' So
I
think the majority is not prepared to use this new doctrine in lots and lots
of areas. If the court were, then it would be embarking on a form of
judicial
activism that would make the Warren court--itself a very activist
court--pretty embarrassed. So I think we should probably see this as a
cobbled together majority finding some good that they can explain with a
straight face without really trying to establish a new doctrine. But
they're
going to have to backpedal to explain why this is just a one-way ticket.

GROSS: In other words, why it's just for recounts and not for the first
count.

Prof. SUNSTEIN: Well, even if it's just for recounts, it's a pretty big
deal
because recounts are pretty common in close elections. And if every recount
has to be administered by specific principles that treat every voter the
same
way, then the Supreme Court is going to be looking over a lot of recounts.
I
doubt they want to do that. They tried to limit it more narrowly by saying,
`It's not just any recount, it's a recount that's statewide and that's
overseen by one state judge. So that the court's kind of lawyerly effort to
say, `This is just this case. Not others.'

But as your question suggests: `Why the case of a recount administered by
one
state judge that's statewide is any different from any other recount?,'
that's
not easy to explain.

GROSS: Now paradoxically, in Texas--the state that George W. Bush is the
governor of--they use the punch balloting--at least they do in a good part
of
the state. And the Texas law says that an indentation on a chad that
indicates a clearly ascertainable intent of the voter can be counted as a
vote. And if the chad reflects by other means a clearly ascertainable
intent
of the voter, it should be counted as a vote. And if there's a
disagreement,
the recount committee chairman makes the decision. That law seems actually
pretty consistent with what the Florida state Supreme Court had suggested,
which the federal Supreme Court overturned. What happens to something like
the Texas law now?

Prof. SUNSTEIN: Yeah. The Texas law that Governor Bush signed is in
constitutional trouble. Fortunately, he won't be governor of Texas and
won't
have to defend the law that he signed on constitutional grounds. But what
you
say is absolutely right. The Texas system is in constitutional jeopardy
because of--currently Governor Bush's victory in the United States Supreme
Court.

GROSS: What did you find most striking about the majority decision of the
Supreme Court?

Prof. SUNSTEIN: There were two things that were really interesting and a
bit
surprising. One was that the line of argument that the Bush people had
pushed
most enthusiastically--that is the Florida court changed the law--the
Supreme
Court did not have five votes for that position. And that was a major
victory, actually, for Vice President Gore. The five justices would not
sign
on to that position.

On the other hand, the terrific victory for the Bush lawyers is that their
kind of somewhat bizarre, very innovative argument that in recount
proceedings
you can't have any arbitrary discrimination, you have to have clear
standards,
that unprecedented argument--there's really no basis for it in previous
decisions--a majority was willing to sign on to that. So a great victory
for
Gore in stopping the five from accepting the main line of argument; a great
victory for Bush--and, apparently a decisive victory--in accepting this more
innovative, unusual argument.

GROSS: Anything you find particularly confusing about the decision?

Prof. SUNSTEIN: You know, the confusing point is whether this is a new
doctrine just for one day or whether this is a new doctrine for the 21st
century. It's unlikely that the five most conservative justices on the
court
want to create a brand-new, broad equal protection voting right, something
they've been very reluctant to create for the last 10 years. But the
opinion
can be taken to have done exactly that. That's why the line of argument
that's accepted, this no discrimination in recounts line, is--actually has
much broader legal implications and much more confusing legal implications
than anyone expected.

GROSS: Cass Sunstein, when we spoke at the beginning of the dramatic
election
aftermath, you said, as did many other constitutional experts, that you
thought it was most unlikely that the federal Supreme Court would hear
anything about this case because, traditionally, election law is left to the
states to write and to interpret. And the Supreme Court heard two cases...

Prof. SUNSTEIN: Yeah.

GROSS: ...pertaining to the election aftermath. Why do you think they
decided to hear it?

Prof. SUNSTEIN: There must be two things going on. One is that a majority
of the court thought that the issue had such overriding national importance
that it was acceptable for the United States Supreme Court to get into a
territory that it usually tries to steer clear of. So first, overriding
national importance.

The second is that five justices, I think, thought that something is rotten
in
the state of Florida and they were convinced early on, it appears, that
Florida was basically trying to change the rules or discriminate or
something
to steal the election for Vice President Gore. If the justices didn't think
something like that, it's very hard to explain this set of outcomes.

GROSS: Do you think of this decision as being a partisan decision?

Prof. SUNSTEIN: It's very hard to accuse justices of being partisan. I
guess
I'd say that this is the closest thing we've had in memory to the appearance
in reality of partisanship. No one should accuse any of the justices of bad
faith or of trying to ensure that their man gets in. I'm sure that wasn't
going on. But the fact that five of them reached out for a new doctrine
over
four dissenting votes to stop counting--it's not partisan, but it's
troublesome.

GROSS: My guest is constitutional scholar Cass Sunstein. We'll talk more
after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: We're talking about last night's Supreme Court decision with Cass
Sunstein, a law professor at the University of Chicago.

If the Florida Supreme Court had set a consistent standard for counting the
undervotes, do you think that the appeal to the Supreme Court would have
been
avoided?

Prof. SUNSTEIN: The argument the court accepted would have been answered if
the Florida Supreme Court had set out a standard in its own opinion. So the
Florida Supreme Court could have done that and avoided at least this ground
for being reversed. Here's the trick. If the Florida court had set out
specific standards, then it would have been rightly nervous that the Bush
people would say the Florida Supreme Court was changing the law. So the
Florida Supreme Court was in a terrible catch-22, where if it said what the
standards were, it would have been accused of changing the law and maybe it
would have been reversed on that ground. And if it didn't say what the
standards were, which is what it chose not to do, then it would be subject
to
attack in the Supreme Court for not providing equal protection. The Florida
Supreme Court's call probably was that it had more to fear from setting out
standards and changing the law than it had to fear from just sticking with
the
law and leaving it vague.

GROSS: And the law that you're talking about is the Florida state law that
says you--that the vote needs to register the intent of the voter.

Prof. SUNSTEIN: Right.

GROSS: And it doesn't say anything more specific than that. And it seemed
to
be leaving the interpretation of intent to the individual canvassing boards
in
the counties.

Prof. SUNSTEIN: Right. And what's important to know is that's completely
standard, that the failure to specify what intent of the voter will mean in
cases of dispute, a majority of the states do that.

GROSS: Well, let me ask you this. If Judge Terry Lewis, who was assigned
to
come up with the system for a recount in Florida, if he had asked for a
specific standard, would that have satisfied the federal Supreme Court?

Prof. SUNSTEIN: Absolutely. If anyone in Florida with the authority to set
out standards had set out standards, then the Supreme Court of the United
States could not do what it did.

GROSS: So you think this would have played out differently if Judge Terry
Lewis had handled it differently?

Prof. SUNSTEIN: Yes. Though if Judge Lewis had specified the standard,
then
the Bush people would be pressing their argument that the Florida courts are
changing Florida law. What they'd say is that, `Florida law says intent of
the voter and now Judge Lewis is changing that by saying some chads count
and
some ballots don't.' And that kind of system would be, they could argue, a
change in the law.

That argument, interestingly, couldn't get five votes in the court, though
maybe if the two justices, O'Connor and Kennedy, who joined the equal
protection argument but weren't willing to say Florida courts should change
the law, they might have said the Florida courts could change the law if
that
was the only avenue they had.

GROSS: This must have been a very interesting ride for you, huh?

Prof. SUNSTEIN: Yeah. It has been a little distressing because we didn't
expect the Supreme Court to intervene so aggressively. Though it may be
that
this is the simplest way for the constitutional system to get out of this.
And it's possible it's the least bad way. The other ways maybe were more
legitimate legally but maybe worse in terms of more chaotic.

GROSS: Explain what you mean a little bit more.

Prof. SUNSTEIN: OK. Maybe the best argument for the court having done what
it did is not legal, but more kind of about statesmanship or politics. And
so
the argument could be that the court didn't really have a very good legal
basis for doing what it did. But if it went the legally sound way and let
the
Florida system proceed to recount, then we would have had a little bit of a
crisis in Florida 'cause the Legislature was all set to name its own
electors.
Then the Florida courts, maybe, were going to require the governor and the
secretary of State to come up with a new slate if it turned out that Gore
had
more votes after the manual recount. The governor and secretary of State
might have refused to certify, then maybe they'd be held in contempt. Well,
this would be really in the nature of a constitutional crisis.

We didn't get there, but if the governor and secretary of State are risking
being held in contempt by disobeying the Florida courts, then we have a
Florida Legislature with their own slate. That's a mess. How's that going
to
be sorted out in Florida and in Washington? In Washington, Congress would
have to sort it out and then the partisan passions would be inflamed. We
might have a Senate that is controlled by one candidate who casts the key
vote. Gore maybe. And the House is predominantly Republican and that would
be so messy and so procedurally complicated that it probably would be worse
than what the Supreme Court did. So what some of the justices might have
been
thinking is that this the only way the legal system can get its way out with
minimal chaos.

GROSS: Any other thoughts you'd like to leave us with?

Prof. SUNSTEIN: Well, I think the court's legitimacy maybe for the first
time--since Roe against Wade, possibly for the first time in many more
decades
than that, the court's legitimacy is genuinely in some difficulty. I don't
think this is going to create civil disobedience and won't have adverse
long-term effects for the court, because it really doesn't do this sort of
thing often. But the court is going to take a hit from the standpoint of
legitimacy. And if the dissenters are right, the court deserves it.

GROSS: Well, Cass Sunstein, I want to thank you so much for talking with
us.

Prof. SUNSTEIN: Thank you.

GROSS: Cass Sunstein is a law professor at the University of Chicago. His
next book, "Republic.com," will be published in February.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Interview: Jeffrey Toobin talks about the Supreme Court's
decision in the presidential election
TERRY GROSS, host:

Jeffrey Toobin is writing a book about the election aftermath. He's a legal
analyst for ABC News and a staff writer for The New Yorker. He's also the
author of best sellers about the impeachment of President Clinton and the
O.J.
Simpson trial. He was among the first people to read the Supreme Court's
decision last night. This morning I asked him if he thought it was a
clearly
written decision.

Mr. JEFFREY TOOBIN (New Yorker): Boy, it is among the most impenetrable
legal documents of any kind that I've read, particularly for a Supreme Court
opinion. One of the things that, you know, all of us who follow the court
closely and particularly follow the court's history, is--you know, you look
for a certain level of grandeur, of rhetoric, of inspiration in the court's
big cases. And it is shockingly absent in the majority opinion.

In fact, there's a very interesting--I mean, the only sort of rhetorical
touch
comes at the very end. And it really is almost an apologetic note and maybe
I
can just read a sentence to you.

GROSS: Please.

Mr. TOOBIN: The court says, `None are more conscious of the vital limits on
judicial authority than are the members of this court. And none stand more
in
admiration of the Constitution's design, to leave the selection of the
president to the people through their legislatures and to the political
sphere. When contending parties invoke the processes of the courts,
however,
it becomes our unsought responsibility to resolve the federal and
constitutional issues the judicial system has been forced to confront.'

In other words, we didn't ask for this mess but we're resolving it the best
we
can. And I think it's--this concluding comment is a response to the--or at
it's least an attempted response--to those who say that the Supreme Court
got
involved in this controversy when they really had no role in it.

But, you know, it's really a rather pinched view and the dissents, I think,
recognized the moment, the importance of this decision and speak in a tone
more appropriate to it than the majority did.

GROSS: Why don't you quote a couple of things from the dissent that you
think
are to the point and well-written. You complain that the majority decision
wasn't very well-written.

Mr. TOOBIN: Well, I think certainly the most evocative quote from any of
these decisions comes from Justice Stevens at the conclusion of his dissent.
And he writes, `Time will one day heal the wound to that confidence that
will
be inflicted by today's decision.' He's talking about the confidence in the
judicial system.

`One thing is certain, however, although we may never know with complete
certainty the identity of the winner of this year's presidential election,
the
identity of the loser is perfectly clear. It is the nation's confidence in
the judge as an impartial guardian of the rule of law.' And I think here
what
we have is Justice Stevens saying that if this election was not outright
stolen by the United States Supreme Court, the Supreme Court really had an
unseemly role in stopping the count and really just truncating the process
when it was really not as broken as the Supreme Court majority said it was.

And I think as we begin to sort of absorb this decision, I think the really
shocking part of it to me is less yesterday's decision, but the stay that
the
court invoked on Saturday, because that was really the killer to this
process.
That was...

GROSS: In the sense that that's what let the clock run out. It was kind of
like a catch-22 in a way.

Mr. TOOBIN: Right.

GROSS: They stopped the process...

Mr. TOOBIN: Exactly. It's...

GROSS: ...and then said, `Well, it's too late.'

Mr. TOOBIN: Well, it's--right. It's a little like the--you know, the
famous
story about the man who killed his parents and then asked for mercy as an
orphan. You know, the majority says, `Well, you know, the real problem was
you didn't have any time to do this.' And they reason they didn't have any
time is because the Supreme Court stopped the process. I mean, it really
was--I mean, that to me was really breathtaking and I think that is where
the
dissents, you know, make a very strong point.

GROSS: Ruth Bader Ginsburg, in her dissenting opinion, said--and this goes
along with what you were just saying. `Time is short, in part, because of
the
court's entry of the stay on December 9th several hours after an able
circuit
judge in Leon County had begun to superintend the recount process.'

Mr. TOOBIN: That's right. And, in fact, Justice Souter is even more
direct.
Justice Souter says, `To recount these manually,' recount these undervotes,
`would be a tall order. But before this court stayed the effort to do that,
the courts of Florida were ready to do their best to get that job done.
There
is no justification for denying the state the opportunity to try to count
all
disputed ballots now.'

GROSS: Jeffrey Toobin will be back in the second half of the show. He's
writing a book on the election aftermath. I'm Terry Gross and this is FRESH
AIR.

(Credits given)

GROSS: This is NPR, National Public Radio.

Coming up, we continue our conversation with Jeffrey Toobin. We'll talk
more
about the Supreme Court decision and consider some still unanswered
questions
about the Florida recount. He's writing a book on the election aftermath.

(Announcements)

GROSS: This is FRESH AIR. I'm Terry Gross back with Jeffrey Toobin. We're
talking about the Supreme Court decision ending the Florida recount. Toobin
is a legal analyst for ABC News and a staff writer for The New Yorker. He's
writing a book about the election aftermath and is the author of
best-sellers
about the Clinton impeachment and the O.J. Simpson trial.

Jeff, experts were saying at the beginning of the election aftermath that
the
US Supreme Court was very unlikely to hear any cases pertaining to the
election because election law is traditionally state law, and the federal
court would be very unlikely to interfere with state law or with state
courts
interpreting state law. The experts who said that were wrong. There were
two
Supreme Court decisions in the election aftermath. How has the Supreme
Court
explained its decision to twice get involved in the election?

Mr. TOOBIN: Well, I certainly don't want to exempt myself from multiple
failures during this, and I certainly was one of those so-called experts who
thought the court would try not to stay involved. I guess the answer
depends
on how cynical you want to be. To take the Supreme Court view on its face
and
to read the words that the majorities have written, they felt that the
situation was sufficiently chaotic and the issues were so great that the
Supreme Court, as the ultimate arbiter of the law in the United States,
simply
couldn't dodge this issue and had to get involved. That's the non-cynical
view.

The cynical view is that, you know, these are politicians in robes, and a
Republican majority on the court decided to bail out a Republican
presidential
candidate. You know, I think it's going to take a long time to sort out,
you
know, which of those views or which combination of those views is correct,
but
it certainly was surprising to see a court, whose touchstone over these past
decade or so has been states' rights, particularly if you look at figures
like
Chief Justice Rehnquist and Justice O'Connor, who have really made states'
rights at the center of their jurisprudence, to jump in and essentially go
into extraordinary detail about what Florida election law can and can't do,
you know, it certainly raises questions.

GROSS: What questions?

Mr. TOOBIN: Well, it raises questions about what their motives were. Were
they really trying to, you know, sort this out in a way that was, you know,
consistent with the United States' Constitution, or were they trying to help
a
Republican candidate? I mean, I don't know the answer to that question, but
I
don't think their opinions answer those questions definitively.

GROSS: Did any of the justices surprise you in the position that they took?

Mr. TOOBIN: Well, I think, I have to say, I am somewhat surprised by
Justice
O'Connor. I re--you know, it's interesting, in their--there are six
opinions,
and only Justices Scalia, Thomas and O'Connor did not write individual
opinions themselves, and although we don't know who wrote the majority
opinion, it's call procurium, which means for the court, and so it's not
entirely clear who wrote that. But--so six justices wrote, but O'Connor
wasn't one of them. And, you know, she has made states' rights such a
foundation of her judicial career. And, remember, she's the only former
state
judge on the Supreme Court, the only former state legislator. So I am
surprised she was not more sympathetic to the Gore argument.

GROSS: Jeff, do you think that this Supreme Court decision sets a clear
precedent? Do you have any clue how it might be used, how it might come
into
play in future elections?

Mr. TOOBIN: Do you know one of the famous quotes--I think it's Oliver
Wendell Holmes said, you know, `Great cases make bad law,' and I think the
presidential value of this decision will generally be rather small; that
there
is just--this situation is so anomalous and the opinion is so tailored to
the
facts of the case before it that I don't think this will set much of a
precedent that will be useful in other cases.

I mean, one of the ironies of this opinion is that this is a court that has,
generally, been very reluctant to find violations of the equal protection
clause. In fact, one of the most famous cases that comes out of the sort of
recent conservative era in the Supreme Court, actually comes out of Texas,
where a group of liberal lawyers said that, in Texas, it's illegal--they
claimed it was unconstitutional for school districts to be funded at
different
levels in different counties of Texas; that, you know, in poor counties,
they
only spent $3,000 per pupil per year, and in rich counties they spent
$12,000
for pupil per county.

The United States Supreme Court, in a famous decision called Rodriguez vs.
San
Antonio, they said, `No, that's fine. That's not a violation of equal
protection. Counties are allowed to have a lot of discretion, and how much
money they spend we don't--education is not a fundamental right, like race
or
voting.' And so, you know, unequal school funding is OK, but dimpled chads
are not OK. I mean, that is, you know, one of the curiosities of this
opinion.

GROSS: The Supreme Court was one of the issues in this presidential
campaign
because the next president is likely to appoint a couple of Supreme Court
justices. Tell me how you think this Supreme Court might change under a
Bush
presidency?

Mr. TOOBIN: Well, you know, this gets very complicated because you're
talking
about a Senate that is 50-50 Democrats and Republicans. It is going to be
next to impossible to get a conservative ideologue onto the Supreme Court
through that Senate when you consider there are 50 Democrats and a handful
of
Republicans, the two women from Maine--Susan Collins and Olympia
Snowe--Arlen
Specter of Pennsylvania, who, on judicial matters, tend to vote with the
Democrats. It's going to be very hard to get a conservative ideologue
through.

However, if you recall, the religious right, Pat Robertson, really had very
few demands on George W. Bush, except when it came to Supreme Court
nominations. That was the issue that the religious right cared about a
great
deal, and that's sort of what they really want out of George W. Bush. So
it's
going to be very hard to imagine how Supreme Court confirmation fights are
going to turn out and who might be nominated in this extremely polarized
environment, an environment that I think is only more poisonous regarding
the
Supreme Court because of yesterday's decision.

GROSS: You know, I heard Nina Totenberg say on NPR that it's conceivable
there'll be an empty chair or two for quite a while on the Supreme Court.
Is
that possible? I mean, is there a limit to how long the Supreme Court is
allowed to function with an empty chair or two?

Mr. TOOBIN: No, there's no limit. In fact, there have been periods of
months
when there's been an empty chair there. Justice Douglas was sick for a long
time in 1975 and refused to step down, and the court operated with eight
members for nearly a year. I mean, it's not an ideal situation, and you
have
the situation of what's called decisions affirmed by an equally divided
court,
which is when the court splits 4-to-4 on issues.

But it is worth remembering that, you know, both candidates, I think, with
an
effort to invigorate their supporters, talked about how many vacancies there
were definitely going to be in these four years. We don't know that for
sure.
I mean, Justice John Paul Stevens is the oldest member of the court, but
he's
only--and I say only by Supreme Court terms--you know, 81 years old, I
believe. And justices have served into their 90s. All the rest of the
members of the court--well, O'Connor and Rehnquist are in their 70s. They
both appear to be in good health. I mean, there is not an imminent vacancy
on
this court, and I think, you know, there's no guarantee there will be.

GROSS: My guest is Jeffrey Toobin, a legal analyst for ABC News and staff
writer for The New Yorker. We'll talk more after a break. This is FRESH
AIR.

(Soundbite of music)

GROSS: My guest is Jeffrey Toobin. He's an ABC News legal analyst, a staff
writer for The New Yorker magazine, author of a book on the O.J. Simpson
trial, on the impeachment, and he's now writing a book on the election
aftermath.

Jeff, you wrote a book on the impeachment of President Clinton. I'm
wondering
if you see any similarities in the cast of characters in the post-election
story and the impeachment story.

Mr. TOOBIN: Well, I think one of the things I've been struck by in
the--just
over these five weeks, is that the intensity of feeling seems to be a lot
stronger on the right than on the left; that the right wing in this
country--and I don't mean that as a perjurative turn at all. The
Republicans,
generally, have been so frustrated by Bill Clinton and so convinced of his
illegitimacy as a political leader that they are mobilized and angry way
more
than the Democratic side. And I think that is true, even though neither of
these candidates, Bush or Gore, personally excited that much loyalty or
excitement. But the sort of anger you saw against Clinton has very much
transferred over to this feeling--to this particular controversy about the
election. So I think that's one parallel.

I mean, another parallel, just to--I mean, I--it may be obvious, but, you
know, again, we see the legal system, you know, highly politicized. You
know,
with Clinton, it was a criminal investigation. Here, it was vote-counting.
But, you know, 10 years ago, 20 years ago we didn't have every political
dispute wind up in court. Now it seems that we do.

GROSS: So many of us were able to watch the various trials because of the
Florida Sunshine Laws; of course, we couldn't see the Supreme Court trial,
but
we could hear it. Were there any great lawyering moments that you want to
single out?

Mr. TOOBIN: There really were. I mean, being in Florida is like being in a
different world. I mean, I remember--you know, I spent a lot of time in the
Leon County circuit court, which is the trial court in Tallahassee, where
Judge Terry Lewis dealt with the first sort of protest cases, and then the
contest trial was held before Judge Sanders Sauls. And, you know, they
don't
just have one camera in the courtroom; they have cameras in the courtroom.
You know, before court is in session, it's like a paparazzi scene in these
courtrooms, and it was just--as someone who grew up in the federal courts
and
practiced in the federal courts, where, you know, you were barely allowed to
bring a pen and pencil, I mean, I couldn't help but chuckle at the scenes
that
went on in these courtrooms.

You know, as for, you know, great lawyering, you know, I don't think there
was
the sort of memorable oratory, in part because the issues were so narrow and
peculiar. David Boies is a wonderful lawyer and did a wonderful job, but,
you
know, what he was talking about was the difference between a protest under
Section 166 of the Florida code vs. a contest vs. under Section 168 of the
Florida code. That is not the kind of subject that lends itself to poetry.

GROSS: And I think that both the judges and the lawyers had to take part in
what you might call `extreme justice.' I don't mean--by that, I mean like
extreme sports, where everything happens very quickly and is very daredevil.
There was no time for anybody to--there was no time for lawyers to prepare
the
kind of briefs that they're used to preparing, to do the kind of research,
no
time for the judges to take the time that they might normally take to decide
such momentous decisions. Was that interesting for you to watch?

Mr. TOOBIN: You know, as someone who practiced law, I had so much sympathy
for the human beings involved because one court after another would order,
at
5:00, that briefs would be due at noon the next day, and I knew that meant
all-nighters for the people involved. And on both sides, I mean, the level
of
advocacy and the level of brief-writing was so good--it was funny, you know,
in the last Florida Supreme Court case, both parties kind of assumed that
the
briefs would be 65 pages; they'd be allowed 65 pages. And the briefs were
due
at noon. Well, at 9:30, the Florida Supreme Court said, `No, we mean 50
pages, not 65 pages.'

So both sides madly had to cut their briefs in an hour from 65 to 50 pages.
And what's really funny is that you can tell that both sides completely blew
off the table of contents and just put random numbers in their table of
contents because they just couldn't manage to get the software to work,
given
the time involved. And that was the kind of thing that went on constantly
and
has been going on for the past five weeks.

GROSS: Are there aspects of this story that you were following that you
think
have more or less gone unremarked that you'd like to talk with us about?

Mr. TOOBIN: Elian Gonzalez is one of them. I think, as we look back on
this
story, one of the undoubted turning points was--if you remember, the Florida
Supreme Court ordered the recounts to go forward on the Tuesday before
Thanksgiving, and it was supposed to go forward in Broward County, in Palm
Beach County and Miami-Dade County. The next day, the Wednesday before
Thanksgiving, the Miami-Dade Canvassing Board, in a raucous scene, voted to
end
their manual recount, saying they couldn't make the deadline. And I think
that moment is an enormous turning point in this whole case.

And I think--I mean, this is obviously something I'm still looking into, but
what--a lot of the force behind the argument to stop the manual recount came
from the Miami Cuban community, Cuban emigre community that remains deeply
outraged at the Clinton administration and the Democrats about the Elian
Gonzalez case. And I think the decision by Miami-Dade and why they decided
to
stop their hand counts, something that was so crucial, I think that is
something that's going to take a lot of examination, for me anyway, over the
next year.

GROSS: So are you suggesting that people in the Cuban Florida community put
pressure on the canvassing board?

Mr. TOOBIN: Oh, I don't think there's any doubt about that. I mean, I
don't
think it's inappropriate to put pressure. It was a political issue. But
there is no doubt that the Cuban community was outraged about, you know, the
Gonzalez case and about the plans for the recount. The House Republicans
made
an enormous effort to send staff members down to Miami to assist in that
effort. Absolutely, it was a highly politically charged environment, and,
you
know, that effort turned out to be pivotal in how this race turned out.

GROSS: My guest is Jeffrey Toobin, a legal analyst for ABC News and staff
writer for The New Yorker. We'll talk more after a break. This is FRESH
AIR.

(Soundbite of music)

GROSS: My guest is Jeffrey Toobin. He's an ABC News legal analyst and a
staff writer for The New Yorker magazine. You wrote a book on the
impeachment
and on O.J. Simpson and is now writing a book on the election aftermath.
That's due to be published next fall.

What are some of the questions that you feel, really, so far go unanswered
that you want to investigate for your book that you might...

Mr. TOOBIN: Well, I've got one.

GROSS: Yeah, go ahead.

Mr. TOOBIN: Who won? Yeah. I mean, seriously, I just don't know. You
know,
one of the things that was so interesting about this recount process that
started last weekend was that, of course, it was an enormous victory for Al
Gore to get this recount started, but as even people in the Gore campaign
would admit, privately if not publicly, is they didn't know once you counted
these ballots whether they'd go ahead. I mean, that's a really serious
question. I mean, that, to me, is sort of about the most exciting thing I
could do as a journalist, as a historian.

I mean, here, we have a profound question about American history that is
truly, truly unknown at this moment: Who won the vote in Florida? And, you
know, it's amazing that we don't know that, but I think it's undoubted that
we
really just don't know the answer to that question.

GROSS: Now it seems to me that there are a lot of reporters and
institutions
that will be lining up to count those ballots, and, as far as I know, those
ballots can be counted because of Florida's Sunshine laws, although I did
hear
somebody on TV saying that the Freedom of Information Act would prevent the
ballots from being counted. So I don't know if there's any truth in that or
not.

Mr. TOOBIN: No, I thi--no, no, that's wrong. I mean, it's very clear under
Florida law, as I understand it, that those ballots will be available to the
public. People shouldn't get their hopes up for an overly definitive answer
because, you know, as the Supreme Court struggled with this issue, how you
count--I mean, merely having access to the ballots and counting them doesn't
definitively answer the question of for whom they were cast because you have
to decide on the standard. I mean, do dimpled chads count? Do pregnant
chads
count? I mean, that's hard to know.

GROSS: What else do you want to know about what really happened?

Mr. TOOBIN: Well, I really want to know what went on in Miami-Dade. I
think
that's a rich--I mean, everything about Miami is interesting, and why that
count was canceled, and why--the political passions that were roiling about
it
were fascinating. I mean, one of the things that I found interesting
covering, you know, this Florida recount as long as I did is that the
counties
sort of took on the personalities of human beings.

You had, you know, the three counties--Broward, Palm Beach and
Miami-Dade--that did the recount. Broward was kind of the good student, the
good child that was very organized and met the deadline and was very sort of
meticulous and didn't really have all that many problems. Palm Beach was,
you
know, a fiasco from start to finish; you know, the kid who, you know, had
his
shirttail out and couldn't get the work done and, you know, took
Thanksgiving
Day off and missed the deadline by two hours, and they couldn't decide on a
standard, and they took four days off to fight in court. I mean, it was
just
a wreck. And Miami-Dade was kind of this mysterious, slightly sinister, not
transparent institution where we really don't know what went on.

GROSS: Why do you think Palm Beach was such the bad student, you know, that
took Thanksgiving off and missed the deadlines?

Mr. TOOBIN: Well, I think that you have to remember how this story started.
On the day after the Election Day, we started hearing about the infamous
butterfly ballot, and that was in Palm Beach, where, you know, the names
were
not in the order that people expected, and the ballot was very hard to read.
And there was a--the election supervisor there, a woman named Theresa
LePore,
who was a Democrat and, by all accounts, a perfectly decent person, you
know,
found herself an object of vilification rarely seen in American life.

You know, as it turned out, the butterfly ballot kind of faded as a legal
issue because it's one of those things, well, what can you do about it?
What
remedy can you offer? As the Florida Supreme Court ultimately found, there
is
no remedy for people who simply voted for the wrong candidate. But because
the press focused on Palm Beach right away, and Theresa LePore was just
completely intimidated by what went on, you know, there was sort of a crisis
atmosphere from day one.

Also, I mean, they just didn't have experienced people in all of this, and
they just sort of didn't get it together. I mean, one of the things that,
you
know, as a lawyer, I learned about Florida: that, you know--for example,
states have personalities in legal settings. In California, everything
moves
very, very slowly. That's just how California law works. One thing you
learn
about Florida law is things happen late. They just--everything happens
late.
And to try to sort of get things done in Florida is very hard, and that, you
know, manifested itself. I think the farther south you go, the more that
was
true.

GROSS: Having written your book on impeachment, was it interesting to you
to
watch President Clinton, who had been the subject of so much partisan
attention, to be silent on the issue of this contested election?

Mr. TOOBIN: Yeah, it was. It was really amazing to see him such a
peripheral
figure. You know, I was down--every once in a while, you know, wherever I
was--usually, you know, working for ABC; there are always the all-news
television stations and, you know, it was constantly the same shots of the
Florida Capitol and the Florida Supreme Court and Gore and Bush. And every
once in a while, you know, Clinton's face would appear on TV, and you'd go,
`Oh, yeah, I remember that guy.' And, you know, remember, he went to
Vietnam.
That was supposed to be such a big deal.

GROSS: Right.

Mr. TOOBIN: It was going to be such a healing trip. It, you know, barely
made the front page on any day. And, you know, I saw him yesterday. He was
making a--I mean, this gives you some idea. On the day that, you know, all
this tumultuous activity was taking place, Clinton was making some statement
about the Federal Aviation Administration, where he was saying, you know,
`Gosh, next year I'm going to have to wait on all those long airport lines.'
I mean, you know, he's really left the scene.

But I tell you, you know, one of the interesting things about presidents
since
World War II is they are at their least popular on the day they leave
office,
and they only rise in public estimation. That's true for every single
president since World War II. Bill Clinton's pretty popular now. So, I
mean,
you know, maybe he really will run for mayor of New York. No, that's a
joke,
but, I mean, I think he's looking better and better.

GROSS: Well, Jeffrey Toobin, thank you so much for talking with us.

Mr. TOOBIN: As always, very nice to talk to you, Terry.

GROSS: Jeffrey Toobin is a legal analyst for ABC News and a staff writer
for
The New Yorker. He's writing a book about the election aftermath.

(Credits)

GROSS: I'm Terry Gross.
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.